Re Macaulay v O'Donnell ; Macaulay's Estate
| Jurisdiction | England & Wales |
| Judge | Viscount Buckmaster,Lord Tomlin,. |
| Judgment Date | 10 July 1933 |
| Judgment citation (vLex) | [1933] UKHL J0710-3 |
| Date | 10 July 1933 |
| Court | House of Lords |
[1933] UKHL J0710-3
House of Lords
Viscount Buckmaster.
Lord Warrington of Clyffe.
Lord Tomlin.
Lord Macmillan.
Lord Wright.
Whereas Thursday the 15th day of June last was appointed for hearing Counsel upon the Petition and Appeal of Denzil Ibbetson Michael Macaulay, of the Cavalry Club, Piccadilly, in the County of London, praying That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 5th of February, 1932, except so far as regards the words "And it is ordered that the costs of the Appellant and of the Respondents of and occasioned by this Appeal be taxed by the Taxing Master as between Solicitor and Client and raised, retained and paid out of the estate of the Testatrix," might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Bryan O'Donnell and Mary Bell (Widow), the Public Trustee, His Majesty's Attorney-General and Charles Dickens Yates, lodged in answer to the said Appeal; Counsel were accordingly called in; and no Counsel appearing for the Appellant, he was heard himself on the matter of his Petition, presented on the 8th day of May last, and the prayer of the said Petition having been refused, he was heard to argue the merits of the case as well on Thursday the 15th, as on Friday the 16th, days of June last; and Counsel having been heard for the Respondents; and due consideration being had this day, of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 5th day of February, 1932, so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, Remitted back to the Chancery Division of the High Court of Justice, with a Declaration that the gift fails and a Direction to deal, if necessary, with Questions 2 and 4 of the Originating Summons, and that further proceedings against His Majesty's Attorney-General and against Charles Dickens Yates be stayed, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Costs of all parties, incurred by them in respect of the said Appeal to this House, be raised, retained and paid out of the estate of the Testatrix such Costs to be taxed as between Solicitor and Client, and the amount of thereof to be certified by the Clerk of the Parliaments.
My Lords,
Two questions arise on this Appeal.
1. Whether a gift contained in the will of Mary Margaret Macaulay in favour of the Folkestone Lodge of the Theosophical Society is, apart from the nature of its object, void as offending against the rule forbidding perpetuities, and
2. If it be so void, whether the gift could still be supported as a gift for a charitable object.
For the decision of these questions it is necessary in the first place to examine what is the constitution of the Theosophical Society, and of the Folkestone Lodge.
The Society appears to be an unincorporated body, but its executive committee are members of an incorporated company known as the English Theosophical Trust Ltd. It is stated to be a component National Society of the Theosophical Society founded in New York in 1875, and incorporated under the laws of British India on April 3rd 1905.
The objects of the incorporated society are:—
(i) To form a nucleus of the Universal Brotherhood of Humanity without distinction of race, creed, sex, caste, or colour.
(ii) To encourage the study of comparative Religion, Philosophy and Science.
(iii) To investigate unexplained laws of Nature and the powers latent in man.
The object of the Theosophical Society is to carry out these objects with special reference to England. Provision is made in the rules for seven members of the Society in England to form a lodge. Such lodges are autonomous; their rules must be consistent with the rules of the English society; they may dissolve themselves, or, if they have ceased to function, be dissolved by the committee of the English society, and at their dissolution their property passes to the English Theosophical Trust Ltd.
A lodge was duly formed in accordance with these provisions known as the Folkestone Lodge, in 1909, and rules were adopted on 2nd October, 1928, stating that the three objects of the Society were those above enumerated, and also providing that all property belonging to the lodge was to be vested in the executive committee. There was nothing in the rules to provide for distribution of monies among the members of the Society, and in the memorandum of association of the Theosophical Society in India, it is expressly provided that no portion of the income and property of the Society shall be paid directly or indirectly by way of dividends, bonuses or otherwise by way of profits to persons who are members of the Society. It is unnecessary to examine whether this rule affects the Folkestone Lodge.
To this lodge Mary Macaulay, the wife of the Appellant, made a bequest in her will which was dated 9th November, 1928, in the following terms:—
"I devise and bequeath all real and personal property whatsoever and wheresoever of or to which I shall be seized possessed or entitled at my death or over which I shall have a general power of appointment or disposition by will except property otherwise disposed of by this my will or by any codicil hereto subject to and after payment of my funeral and testamentary expenses and of the duty on all legacies by this my will or any codicil hereto bequeathed free of duty unto the Folkestone Lodge of the Theosophical Society (but not to the Headquarters or other Lodges of such Society) absolutely for the maintenance and improvement of the Theosophical Lodge at Folkestone and I declare that the receipt of the person who professes to be the Treasurer or other proper Officer for the time being of the said Lodge shall be a sufficient discharge to my Executors."
The testatrix died on 7th January, 1931. The nature and extent of the property it is unnecessary to examine. Part of it was her own and part consisted of settled funds over which she had a power of appointment. Proceedings out of which this Appeal has arisen were instituted in the Originating Summons of 19th June, 1931, taken out by the trustees of the will, the Appellant, the Public Trustee (as representing the settled funds), the Respondent, C. D. Yates (the Treasurer of the Folkestone Lodge) being the Defendants, and to them the Attorney-General was subsequently added. The questions asked in this summons material to this Appeal are in substance those I have...
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